March 3, 2010

The Sky Is (Probably Not) Raining Bullets

Lawyerly warning! I am not your lawyer -- I am not anybody's lawyer. I've never seen the inside of a law school, and I try not to play one on the internet, either. However, this post necessarily has a lot of heavy-duty legal lifting.

I'm certain I have made some mistakes through ignorance, but I've done the best I can; one hopes any mistakes are minor... but if I have misspoken in some significant way, please do comment or tell me via the Lizardly Tips e-mail address found in the right-hand column, somewhat below. Thank you for your eyeballs.

The Times of Our Nation's Capital published a lengthy article about a vital and exciting gun-rights case, McDonald v. Chicago, that attempts to overturn Chicago's strict "ban" on handgun possession. (To be technical, Chicago does not outright ban handguns; but it does require that all firearms be registered with the local police -- then bans the registration of pistols, de facto banning pistols themselves.)

While several Illinois cities with similar bans -- Evanston, Morton Grove, Wilmette, and Winnetka -- rescinded them after the Supreme Court's landmark ruling in District of Columbia v. Heller, 554 U.S. ___ (2008), striking down the gun ban in Washington D.C. on Second Amendment grounds, Chicago and Oak Park are fighting tooth and hammer to keep their bans. McDonald v. Chicago, which began oral arguments in the Supreme Court yesterday, seeks to overturn the ban in those cities.

McDonald has two main arguments...

Incorporation of the Second Amendment to state and local laws

First, plaintiffs ask the Court to overturn the city bans by "incorporating" the Second Amendment to state and local governments via the Fourteenth Amendment, as has already been done with most (but not all) other rights protected by the Bill of Rights. This is a traditional argument; the National Rifle Association filed its own case against Chicago, National Rifle Association v. City of Chicago, making this argument exclusively (though a "friend of the court" brief filed in the NRA case also used McDonald's second argument, discussed below). The Court has more or less combined the two cases, carving some time for the NRA out of the time alotted for McDonald attorney Alan Gura.

The claim here seems self-evident to me, though it has never before seemed evident to the Supreme Court: When the Founders wrote, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," we ought to assume they actually meant what they wrote: Keeping and bearing arms is a fundamental right held by the people -- where "the people" means the same in that amendment as it means in the First and Fourth amendments: an individual right held by each individual adult, with a few exceptions (felons, drunkards and drug addicts, persons under a restraining order, the insane).

Moreover, the amendment doesn't claim to create this right; it assumes that it preexists the Constitution. It's not a created right, such as the right to vote for your U.S. representative; it's a fundamental right that requires zealous protection.

This right, they wrote, must not even be infringed... which makes gun rights more sacrosanct than, say, the First Amendment's guarantee that the free exercise of religion shall not be "prohibited": You can infringe the free exercise of religion (by banning animal sacrifice, for example) while not running afoul of the First Amendment; but you cannot infringe gun rights without violating the Second.

It's clearly the duty of the federal government to police itself, via the federal court system -- stopping federal agencies or Congress from infringing the Second Amendment; that was the main thrust of Heller, op.cit. The only question that remains is whether it's also the duty of the federal courts to stop state and local governments from infringing the right to keep and bear arms. That is the point that McDonald should decide: If the answer is Yes, then the Supreme Court will presumably strike down gun bans (and de facto gun bans), along with every other infringement on the right to keep and bear arms, in Illinois and every other state.

(Note that to "bear arms" is not the same as to carry a weapon; the Court might hold that it protects carrying a gun under some circumstances but not others. That's a case by case question.)

The gun-control side unconvincingly argues that "the people" actually means only members of the National Guard; they base this on a tendentiously fabricated reading of United States v. Miller, 307 U.S. 174 (1939) in a later appellate-court decision: Miller used as its test whether a particular weapon -- a sawed-off shotgun in Miller's case -- was one typically used by militias:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

(They are routinely so used, of course; but that's another issue. Neither Miller nor his attorneys showed up for the hearing, and the case was decided entirely on the basis of the prosecution's argument. Miller's attorneys said they were too broke to travel, and Jack Miller himself sent his regrets, having inconveniently been slain in a gunfight a month before the Supreme Court hearing. Thus nobody was present to bring to judicial notice the ubiquity of short-barreled shotguns in regular militias.)

Then an appeals court in the 1940s -- I cannot recall the case offhand -- deliberately misinterpreted the clear statement above to mean, not that the weapon protected had to be a militia-style weapon, but that its owner had to be a member of the militia.

But which militia? There is the organized militia, which became the system of state National Guards; and there is the unorganized militia. Again from Miller:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.

Naturally, opponents of gun rights (a) interpret the subordinate, explanatory clause to be the main clause, limiting gun rights to members of the militia; and (b) presume that by "militia," the amendment must surely mean the organized militia, now called the National Guard. It's a weird stretch that even many liberal constitutional scholars, such as Sanford Levinson, Alan Dershowitz, and Laurence Tribe are unprepared to make. (Subscription to the Wall Street Journal may be required for that third link.)

But McDonald is also being argued on another, more controversial ground that has not only gun-hating liberals but traditional conservatives, well, up in arms...

Privileges and immunities

Gura is pushing to overturn the Court decision in the so-called Slaughter-House Cases, 83 U.S. 36 (1873); that decision limited the "privileges and immunities" clause of the Fourteenth Amendment -- "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" -- which Gura believes even more strongly protects the right of individuals to keep (and bear, leave us not forget) arms:

"This is the best argument for the right to bear arms," Mr. Gura said, noting that the privileges or immunities clause was intended to extend the protections of the Bill of Rights to all Americans and made the federal government responsible for guaranteeing those rights, rather than the states.

The privileges or immunities clause, Mr. Gura argued, was created primarily to protect recently freed slaves from oppressive and discriminatory laws enacted by some Southern states after the Civil War and was misinterpreted in an 1873 Supreme Court decision.

The Slaughter-House Cases consolodated three New Orleans lawsuits against the Crescent City Live-Stock Landing and Slaughter-House Company and the state of Louisiana. In mid-nineteenth century New Orleans, the slaughter of upwards of 300,000 animals per year generated boatloads of rotting byproducts, from dung to urine to innards; this mountain of offal in turn led to frequent epidemics of cholera and yellow fever.

In 1869, Louisiana didn't allow this gruesome crisis to go to waste. It passed a state law consolodating all slaughtering into a single location -- and also "consolodating" the market itself into a monopoly. The state chartered the Crescent City Live-Stock Landing and Slaughter-House Company (a private company) and gave them the exclusive authority to let space to individual butchers in the city's slaughterhouse district:

[The statute] declares that the company... shall have the sole and exclusive privilege of conducting and carrying on the livestock landing and slaughterhouse business within the limits and privilege granted by the act, and that all such animals shall be landed at the stock landings and slaughtered at the slaughterhouses of the company, and nowhere else. Penalties are enacted for infractions of this provision, and prices fixed for the maximum charges of the company for each steamboat and for each animal landed."

The Butchers' Benevolent Association of New Orleans and its 400 members sued to stop Crescent City Live-Stock's takeover of the butchering business, hinging their case on the Fourteenth Amendment's due process, privileges or immunities, and equal protection clauses.

Writing for the 5-4 majority, Justice Samuel Freeman Miller rejected the privileges and immunities clause argument, as well as the others, affirming the previous court rulings and finding for Crescent City Live-Stock; Justice Miller held that the clause applied only to those privileges or immunities granted by "United States citizenship" and not those granted by "state citizenship," which the Court held were two different things:

It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a state, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.

We think this distinction and its explicit recognition in this Amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.”

From what I can glean from my not-a-lawyer perspective, Justice Miller's opinion held that the Fourteenth Amendment protected only those privileges or immunities that were created by the Constitution -- for example, the right not to be convicted of treason except upon the testimony of two witnesses to the same "overt act."

The list of constitutionally created privileges or immunities is very short and very limited, and this ruling effectively gutted the Fourteenth Amendment. Most threats to a citizen's privileges, immunities, or rights come from his state, not the federal government; yet the Slaughter-House Cases held that the Fourteenth only guaranteed the latter.

But the plain language of the Fourteenth doesn't seem to say that:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It doesn't read, "No State shall make or enforce any law which shall abridge the U.S. Constitution-created privileges or immunities of citizens of the United States;" the only restriction is to the person himself (he must be a U.S. citizen), not to the particular variety of privilege or immunity. And since every state citizen is also U.S. citizen, it's impossible to abridge the privileges or immunities of a state citizen without simultaneously abridging the privileges or immunities of a U.S. citizen (the same fellow).

(I'm told that most constitutional scholars now accept this reasoning and say the cases were wrongly decided; but I'm not a lawyer, I never attended law school, I don't personally know any constitutional scholars, and I haven't read any con-law textbooks... so I can't say for sure.)

About 115 years ago, the Court entered its "incorporation" era, in which it started applying the protections and prohibitions of the Bill of Rights to state laws and state depredations. Since then, the Court seems to have overturned the Slaughter-House decision as it related to the "due process" and "equal protection under the law" clauses of the Fourteenth... but not as it related to the "privileges and immunities" clause. (This is one of those points where I really can't say for certain without having a con-law background; lawyers, anyone?)

Evidently, that is the deficiency that lawyer Alan Gura today demands the Court redress in the McDonald case: If this Court sides with Mr. Gura on this particular argument, the Slaughter-House Cases will be completely overturned, and the federal government will become responsible for protecting "the privileges or immunities of citizens of the United States," which nearly everyone seems to agree certainly includes the Second-Amendment "right to keep and bear arms."

We now return, by a commodious vicus of recirculation, back to McDonald v. Chicago, its "privileges and immunities" argument, and the alarums and excursions it provokes...

Controversy, schmontroversy

The TWTs at the Washington Times first state the obvious:

If the current justices side with Mr. Gura and overturn the Slaughterhouse Cases ruling, not only will states be bound to recognize the Second Amendment right to keep and bear arms, but they also will be forced to recognize the other constitutional rights that have never been applied to states, such as the Fifth Amendment right to a grand jury indictment in a criminal trial and the Seventh Amendment right to a jury in a civil trial.

Then the article drops what some social conservatives fear is the bombshell.

The American Civil Rights Union (ACRU) is a nonprofit founded by former Reagan advisor Robert B. Carleson (it's a conservative answer to the ACLU, of course). Constitutional scholar Ken Klukowski wrote an amicus brief for McDonald v. Chicago for the ACRU and other similar groups warning the Court against actually overturning the the Slaughter-House Cases:

The group, whose policy board includes conservative legal heavyweights such as former U.S. Attorney General Edwin Meese III and former Solicitor General Kenneth W. Starr, supports incorporation of the Second Amendment through the privileges or immunities clause but asks the court not to overturn the Slaughterhouse Cases decision.

"The Privileges or Immunities Clause could be used as a source for judicial activism unlike anything America has ever seen," the group said on its Web site.

The ACRU frets that widespread federal enforcement of the "privileges or immunities" clause of the Fourteenth could foist same-sex marriage on the entire country via a back-door approach (sorry about that). They worry that if any one state recognizes same-sex marriage -- and four already do -- then all states would have to recognize it, even for their own state citizens who go to another state, got married to a person of the same gender, then return. Similarly for extreme abortion rights (partial-birth abortion, for example), government health care, and so forth.

But many constitutional scholars (and complete rubes, like me) think this is a real stretcher: Even if the Court holds that the "privileges or immunities" clause of the Fourteenth Amendment requires the federal government to enforce the explicitly constitutionally protected "right of the people to keep and bear arms" against those states, counties, or cities that abridge
that right, that cannot logically be considered a precedent for the Court forcing states to recognize and adopt same-sex marriage... or polygamy or incestuous marriage, for that matter.

The "several states" have a great many differences in how they handle various legal matters even apart from marriage, from business incorporation, to health care, to citizen initiatives, to school funding, to taxation, to the licensing of food and cosmetics, to pollution laws, to utilities. Nobody seriously argues that, in order to properly enforce the "privilieges or immunities" clause, we must steamroll all distinctions between states, transforming our Federalism into a huge nationalist smear. (I must assume there are many -- including many in the administration of Barack H. Obama -- who pine passionately for such a grand idea; but they're not in the crucible of politics actively pushing it.)

The Court cannot legitimately cite this case to promote a liberal agenda, no element of which has a status equivalent to the right to keep and bear arms. Thus, the only way the Court can make gun rights a precedent for same-sex marriage is to brutally abuse the ruling in McDonald. If it does, then by definition, we are dealing with a runaway Supreme Court.

And if we already have a runaway Supreme Court, who needs precedent?

Such a Court would do whatever it needed or wanted to do, as it did in 1873 in the Slaughter-House Cases, in the 1940s in that gun-control case, or in 1973 with Roe v. Wade, 410 U.S. 113 (1973): A runaway Court can deliberately misread or misapply any non-precedent and torture it until it confesses; so what difference would McDonald make?

Whether McDonald is decided on the basis of the "privileges or immunities" clause, or solely on the basis of the "due process" and "equality of rights" clauses, will make no difference. A legitimate Court would not cite McDonald as precedent, and a runaway Court would cite McDonald even if it had to jack up the title and run a whole new decision underneath. There is no increased risk from the Court citing more than one reason to declare that the Second Amendment protects an individual right against all despoilers, federal, state, or local.

So three cheers for Alan Gura, and let the legal chads fall where they may! We have a great decision in Heller, and I predict we'll get an even more monumental and spectacular one in McDonald. Stay vigilant but don't borrow trouble.

Hatched by Dafydd on this day, March 3, 2010, at the time of 5:14 PM

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Comments

I concur in your analysis. It seems clear from the history of the 14th Amendment and the common understanding the phrase "privileges or immunities" at the time that the clause was explicitly meant to apply the Bill of Rights to all citizens without State interference. I do not share the fear that some have articulated that reinvigorating this clause would open up a can of worms.

All of that said, there is also a fascinating racial element to all of this that opponents of incorporating the 2nd Amendment are going to have to reach if they wish to side with the City of Chicago. The progeny of the Slaughterhouse Cases was Cruikshank, a decision that ultimately allowed for the KKK to expand without fed interference and for the development of the Jim Crow laws. The background to Cruikshank is that, on Easter Day, 13 Apr 1873, hundreds of black Republicans were meeting in the Colfax, Louisiana courthouse to protect it from a Democratic takeover during a political dispute. Hundreds of whites surrounded the Courthouse and attacked, burning it down and killing somewhere between 100 and 280 blacks. Several members of the white mob were arrested and charged under The Enforcement Act, a federal law that made it a crime to conspire to deprive anyone of their Constitutional rights.

The Cruikshank Court dismissed the case against the defendants. The Court held, on the basis of the Slaughterhouse Cases, that the federal government could not hold individuals liable for violating another citizens civil rights. Among other things, the Court held that individuals could only look to the States for the enforcement of their 1st and 2nd Amendment rights.

It is a tremendous travesty. But the only way supporters of the City of Chicago can hold in the City's favor is to reaffirm one of the most wrongheaded and seemingly racist -if not racially charged in its aftermath - decisions of our Supreme Court, Cruikshank. That is more than a bit ironic. I can't wait to hear the lefties explaining that one to their African American base.

But the only way supporters of the City of Chicago can hold in the City's favor is to reaffirm one of the most wrongheaded and seemingly racist -if not racially charged in its aftermath - decisions of our Supreme Court, Cruikshank. That is more than a bit ironic. I can't wait to hear the lefties explaining that one to their African American base.

Well, unless this aspect is brought to the attention of said base, they don't have to. The MSM is certainly not going to bring this up. And how much of that base reads non-liberal blogs, or listens to talk radio? Or watches Fox News?

This right, they wrote, must not even be infringed... which makes gun rights more sacrosanct than, say, the First Amendment's guarantee that the free exercise of religion shall not be "prohibited": You can infringe the free exercise of religion (by banning animal sacrifice, for example) while not running afoul of the First Amendment; but you cannot infringe gun rights without violating the Second.

Nah, it's basically the other way around. The original meaning of "infringe," and the one the Framers almost certainly intended when they wrote the Second Amendment, means essentially "destroy." Outright bans are obvious infringements, but laws burdening the right to bear arms to a lesser degree may not be (cf. copyright and trademark infringement: parodying a copyrighted work or saying "Coke sucks!" may offend the owner of the copyright or trademark very much, but neither constitutes an infringement).

Conversely, the Supreme Court held in Church of Lukumi Babalu Aye v. City of Hialeah that a ban on animal sacrifice did indeed violate the free exercise clause of the First Amendment. Note also that the other personal liberties protected by the First Amendment - freedom of speech and the press - cannot be "abridged," which really does mean essentially what you seem to think "infringe" means. Query how much the state could regulate the expression of religion without also running afoul of those provisions, or of the Establishment Clause, even if the policy technically fell short of "prohibiting" free exercise of religion as such.

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